The Prime Minister has been criticised recently, including by Tory MPs such as Dominic Grieve for removing from the Ministerial Code an explicit requirement to uphold and obey international law.
Writing for the Policy Exchange blog Professor John Finnis, of Oxford University, sets out the flawed thinking behind these criticisms. He writes:
“Using a formula introduced in 1997, the 2010 Ministerial Code asserted an “overarching duty of Ministers to comply with the law including international law and treaty obligations”. This was an assertion at odds with the fundamentals of British constitutional law…
“The most fundamental principle of our constitutional law, and so of the Rule of Law in this country, is that Ministers can neither claim any immunity, by virtue simply of their office, from the rules of common law, nor by any decree or order impose a legal duty (or relieve anyone of a legal duty), except to the extent that an Act of Parliament authorizes them to do so.
“To say that Ministers can change the legal rights or obligations of anyone in the realm simply by entering into or ratifying an international treaty is to challenge that most fundamental principle of our constitutional law, and thus challenges also the Rule of Law.”
In short, the previous version of the Code gave the impression that international agreements and treaties were as binding on ministers and British subjects as laws passed by Act of Parliament. Which they’re not.
Nor, indeed, is the Code itself the legally binding document some have cast it as. Finnis explains:
“The Prime Minister’s statements about ministerial duties in the Code cannot conceivably bind Ministers in law. They set out an understanding on the basis of which he expects Her Majesty’s ministers to carry out their responsibilities. He reminds Ministers of their legal duties, and states an intention that they shall respect them. By joining his administration Ministers become morally bound to honour that intention and expectation. But that moral obligation is no part of the law of the land (by which they are legally bound quite independently of any Prime Ministerial statement or Code).”
The post is a short and informative read, and is especially valuable coming as it does from a man who has been admitted to the English Bar.
One of the unremarkable things about the growth of the political power of the legal profession is that lawyers – at least the most vocal lawyers – tend to be strongly in favour of it.
This includes lawyers-turned-politicians such as Grieve, who has taken up the cudgels not only for the Ministerial Code but the Human Rights Act, another measure which hugely increases the power of the judiciary at the expense of Parliament.
Writing in the Daily Telegraph, Charles Moore explains how:
“On the continent, a system has long prevailed which sees the law as the assertion and implementation of universal, codified principles. And since the Second World War, partly out of memories of dictatorship, but also because of a lack of faith in representative government, this system has equipped “constitutional courts” to rule over elected parliaments.”
It is perhaps not surprising that lawyers can find no terror in the prospect of a world governed by lawyers. But the profession’s near-united public front puts opponents at a tremendous tactical disadvantage.
Defenders of the expansion of legal oversight will invariably try to draw lay critic into debates on narrow points of law, where they hold an enviable advantage.
Not only are they going to know the ins and outs better, but all but the most engaged and sceptical of observers are likely to give the lawyers the benefit of the doubt because, well, they’re the professionals.
(Although this does raise a profound problem itself: that courts and their cases, which can overturn and reinterpret the will of our elected Parliaments, can only be scrutinised by a privileged and expensively-educated minority).
So critical voices such as Professor Finnis’, coming from inside the tent and armed with legal training, are highly valuable.
This is especially true when you realise that barristers are, like the rest of us, political beings with an intense interest in improving their own position and that whilst they are by necessity clever people, cleverness and wisdom do not invariably attend on one another.
By way of demonstration, here’s how one responded to Moore’s measured criticism of the Supreme Court:
As I’ve written on this site before, it always strikes me as strange that those who aim to take the knife to our constitution in the name of greater democracy almost invariably select as their targets its advisory or passive elements – the House of Lords and the Crown – whilst either ignoring or even supporting the passage of power from Parliament to regulators, courts, and international institutions.
This Daily Telegraph editorial, published just after the Supreme Court was established, is as cogent an indictment of this process as any.
True democrats should find their list of targets entirely the reverse: defending those institutions which supplement and support our supreme, elected Commons whilst curbing those rival institutions which seek to suborn its power and responsibilities.
More power, then, to PX’s Judicial Power Project.